One cannot deny the universal truth for existence of the court system: ‘The interest of the litigant is supreme.’ In terms of Article 21, the legal fraternity reflects this idea in the form of the concept of ‘Access to Justice’.
If the interest of the litigant becomes a foregone conclusion, so does the worth of this system.
The world today is faced with a terrible pandemic, one which has not been witnessed for over a century. The entire human race has come to a standstill. And yet, for its survival, one must move on. If human functioning is undergoing innovative adjustments, should not the elements of the judicial system – which provides an essential service of ‘justice’ – take upon itself to rework its methods to remain relevant in today’s times?
India has a unified judiciary. The litigant looks at the courts not as a multi-layered horizontal lot, but as a single vertical system. Uniformity of processes therefore is naturally expected to facilitate a smooth and trouble-free experience.
National Policy for ICT enablement of the Indian Judiciary
An idea of a uniform Information and Communication Technology (ICT) enablement of the Indian judiciary took firm roots with the constitution of the E-Committee by the Government of India in 2004 at the recommendation of then Chief Justice of India RC Lahoti. Amongst the Terms of Reference, the following are worth taking note of:
“II. Formulations, Implementation and Monitoring:
(a) To formulate a National Policy on computerisation of the justice delivery system.
(b) To design an IT network, along with NIC and other knowledge and service providers, and create an IT grid linking the Apex Court to all courts in the country;
(c) To draw up an action plan, with appropriate phasing, for time bound implementation…”
The E-Committee formulated the National Policy and Action Plan for Implementation of ICT in the Indian Judiciary in August 2005, which was duly approved by the CJI. One of the critical requirements noticed in the National Policy 2005 was,
“...uniformity in the use of software at various court complexes shall render the functioning of the judicial system more coherent and in synchronization.”
This was based on the status reports received from the high courts and the district courts that the application software so far developed for Indian courts are not uniform and "developed at the whims and fancies of the local developers on the platforms and data base management tools of their choice and convenience". The eCourts project in India thus took wing at a national level and implementation began.
As the eCourts project moved into Phase I of its implementation, in a very large number of court complexes, computer server rooms and judicial service centres were readied and much work was done at the ground level. As time progressed, experience required a fresh Action Plan for Phase II. The Policy and Action Plan for Phase II of the eCourts Project formulated by the E-Committee was approved in January 2014.
The Phase II Action Plan noted that implementation experience required the procurement and supply of computers and indeed of all hardware to be decentralized, with greater responsibility being placed on the High Court to ensure that infrastructure, hardware and day-to-day issues are taken care of at their end.
However, the aforesaid foundational principle of uniformity was continued by the E-Committee even in its Phase II Policy in the following terms:
“…eCourts Integrated Mission Mode Project, being a Central Project under the NeGP Plan [National eGovernance Plan] and for reasons of ensuring uniformity of infrastructure in Courts across the country, it becomes necessary to decide the design and specifications of the infrastructure at a central level. This is also significant from the point of view of software to be used and services to be rendered being more or less unified and centralized with only some variations from State to State.”
Chapter 5 of the Phase II Action Plan dealt with System and Application Software for Court Processes and took note of the fundamental principle of uniformity by making e-Committee as the "deciding agency for software applications to ensure compatibility and uniformity."
Another extremely important principle adopted was the "software compatibility and interoperability, both horizontal and vertical", which was noted to be "absolutely necessary and all High Courts will need to ensure this."
With the aforesaid objectives in mind, the first policy decision taken in the Phase II Action Plan for software implementation in the eCourts project was as under:
“1. eCommittee to be the Nodal Agency for policy on all Software Solutions provisioned through the eCourts Project: In order to ensure optimum uniformity in the software solutions in the eCourts Project across the country, the eCommittee will be nodal agency for policy on software solutions to be used on the hardware provisioned through the eCourts Project. This uniformity will ensure compatibility also in the initiatives going on at national level like National Judicial Data Grid (NJDG), integration of various stakeholders of the Justice Delivery System that is Jails, Police, FSL etc. in the vertical and horizontal integration of Case Information Software in the Courts of the country etc.”
Phase II provides for the following activities to be completed:
1. Video-conferencing for all courts and legal aid offices.
2. Scanning/digitisation of case record, document management system for digital archiving/storage/retrieval.
3. Use of computers by all important sections of the Registry for day to day processes and service delivery
4. Unified Case Information System (CIS) for all Courts
Inspite of the above declared goals of uniformity, a detailed study by Vidhi Centre for Legal Policy titled eCourts in India – From Policy Formulation to Implementation on the implementation of eCourts shows that uniform implementation is singularly lacking. It has been noted that basic information like cause lists, case status, daily orders or final judgments are not uniformly available even across the High Court websites.
Some more instances would bring home the point:
The manner in which the causelist or case status or orders or judgments can be located or searched or downloaded for different courts is not uniform.
A litigant or the advocate cannot access all the data of a case including case files, documents, records, etc of a particular case before any court.
It is unclear whether the back-end of the system developed or the database structuring for different courts is uniform or not.
It is unclear whether seamless exchange of data is possible between all the courts in the country through the National Judicial Data Grid.
As the implementation progressed, ICT in each of the High Courts seem to have taken an ‘island’ approach. There seems to be individual branching of ICT development in the Indian judiciary rather than a single uniform growth as planned both under Phase I and Phase II of the eCourts project.
COVID-19 and beyond
The present COVID-19 crisis throws new challenges to the Indian judiciary. We cannot jest ourselves into believing that the COVID-19 impact will remain only till the national lockdown is imposed. We cannot also be naïve enough to presume that there would not be another pandemic in the future.
Is it not an opportune moment for the Indian judiciary to come out of the clutches of archaic ‘paper and records’ system and introduce systematic transformation in the justice processes in the interest of the litigant? For how long can the courts remain closed and remain mute spectators to the growing injustice? Would providing a tiny window of undefined ‘extremely urgent matters’ help us get over this terrible tide?
For a common man, every matter requiring application of judicial mind is urgent. Justice delivery for ALL must go on and everything else – possibility, processes and convenience – is incidental and consequential. It is upon the justice delivery system – courts, judges, lawyers, registry – to ensure that they update themselves to meet the challenge.
It is no doubt commendable that the Supreme Court and High Courts have been accepting ‘extremely urgent matters’ for hearing through video-conferencing. However, even introduction of video conferencing has hardly been uniform. Phase II of the eCourts (approved in 2014) provides for video conferencing in all the courts. Clearly, this has not happened yet.
The Supreme Court, in view of the COVID-19 crisis, has in its order dated April 6, given leeway to each of the High Courts to adopt a ‘measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies’.
Different courts have thus been using different applications on a trial and error basis. The Supreme Court is using Vidyo, the Kerala High Court is using Zoom (though the Central government has advised that it is not a safe platform), the Karnataka High Court seems to have developed its own in-house video conferencing facility, Delhi High Court is using WebEx, etc.
The need of the day is not only use of technology, but its uniform application across the judiciary. The E-Committee has, since its constitution, played a dynamic role towards ICT enablement of the Indian judiciary. Possibly, this is the most opportune time when further efforts can be made to ensure that the fruits of those efforts are available to each and every litigant uniformly across the country.
Unless the Courts are able to empower the litigant by providing them required support through use of technology, its work would still remain a work-in-progress.
There are three thumb rules which can be employed at this stage for eCourts:
In eCourts, the focus should be on ‘Courts’ and not ‘e’. It is necessary that the technological reforms should treat the judiciary as a holistic entity. Fragmented success over use of technology in different courts is unlikely to yield the desired results for the litigant.
There is a difference between computerization and eCourts. We are past the stage of computerisation in the Indian courts. eCourts however must look at the needs of the litigants and introduce systems that can precisely meet those needs. It is the difference between being computer-centric and litigant-centric. The time has come for opting the latter so that purpose for the which the journey was embarked can be achieved.
Focus ought to be on transforming the process through standardizing. It is highly desirable that ICT-based applications with uniform look and feel and most important, functionality, are adopted for the entire judiciary.
At this point of time, one can expect the E-Committee to be spearheading the path of technological upliftment of the Indian judiciary. After all, it was with that objective that this committee was constituted at the first place.
Today’s unfortunate situation bars a litigant from even approaching the courts. Access to justice has come to a halt. It is worse than what it was during the Emergency days, when at least a sufferer could knock the doors of the courts. Today, even the path to those doors are closed. We need to hear those muffed cries for justice from behind those doors and ensure that they are duly answered before its too late. Full-blown deployment of ICT in a uniform manner across the judiciary can be the key to this impasse. This is a wake-up call and we need to work on a war-footing.Devashish
The author is an Advocate-on-Record at the Supreme Court of India. He is a Harvard Law School graduate and a Doctoral Research Candidate (part-time) at Jindal Global Law School.